9th Circuit Tosses Attorney’s Appeal

(CN) – The 9th Circuit ruled there’s nothing it can do for an attorney sanctioned for committing ethical violations while handling a pair of employment case against a Redding, California school district. The case has its roots in employment decisions made by the Gateway Unified School District in the summer of 2009. The first involved Jody Thulin, an assistant superintendent was reassigned to a teaching position after her superiors concluded she was “confrontational” and “not a team player.” Thulin quit rather than accept the demotion and promptly sued the district. Weeks later, the district had similarly upsetting news for Kendell Lynn, who was then serving as its director of information and technology. In August 2009, Lynn was told his position was being eliminated for budgetary reasons. Lynn believed otherwise. He blamed his being laid-off on racism, and also on the district’s believing he was assisting Thulin in her wrongful termination lawsuit. Lynn said that between being told of his impending layoff and his actual last day at work, he continued to perform his job duties, including ensuring the security of the district’s information technology systems. During this task, Lynn said he discovered numerous emails suggesting racial bias and illegal job actions against Thulin. He made a backup copy of these emails, and also provided a copy to attorney Robert Thurbon, who was representing Thulin and was his attorney as well. As described by U.S. Circuit Judge Johnnie Rawlinson, who wrote the opinion for the three-judge panel, Thurbon claimed that after learning of the existence of the emails and the facts regarding their acquisition, he conducted “certain legal research” and concluded Lynn acquired the emails during the course and scope of his employment, and that they could be used to support Thulin’s case. But as the trial approached, both men who had served as Gateway’s superintendent’s during Lynn’s employment by the district declared they never authorized Lynn’s unfettered access to the districts email system. Ultimately, a state court determined Lynn was not authorized to possess or disseminate the emails and enjoined Thurbon and Thulins from using them in the ongoing proceedings. Thurbon, however, was undeterred. According to Judge Rawlinson, Thurbon used his knowledge of the emails to request reproductions of them. It was then that the district realized the extent of Lynn’s copying of the emails was far greater than they’d believed. Rather than comply with Thurbon’s request, they filed another action in state court to recover all the emails Lynn possessed. The state court issued an emergency restraining order, which would become a preliminary injunction against prohibiting the use of the questionably obtained emails. After discovering that Thurbon continued to use the knowledge gained from the emails to prepare a public records request, the court found the attorney in willful violation of its orders and fined him $2,500. In the meantime, Lynn filed a lawsuit against the district in federal court. Following a hearing, the district court determined that “Lynn stole 39,312 emails” and opined that a careful lawyer, upon being given access to the emails, would have immediately hired criminal counsel for Lynn, advised him of his Fifth Amendment rights and of the potential criminal penalties he might face. But Thurbon, the district court found, “did none of that.” “Even more shocking,” the court said, according to Rawlinson, is that Thurbon “actually used the emails in this other lawsuit, creating a clear conflict of interest for him now between his two clients.” The district court noted at least eight violations of professional conduct had been raised, and while it denied Gateway’s request to dismiss the lawsuit, Thurbon and his firm were disqualified from further participation in the case. The court also ruled that none of the stolen emails could be used in any way in this lawsuit. Thurbon appealed to the 9th Circuit, but the panel held that it lacked jurisdiction because the ethical violations were intertwined with the disqualification order, and disqualification is not subject to interlocutory appeal. “As an appellate court, we only have jurisdiction over final judgments,” Rawlinson wrote. While there is an exception in the case of a collateral order, involving an important question separate from the merits of the underlying case, that exception did not come into play here, the panel said. Further, it said, the U.S. Supreme Court has “explicitly held that ‘orders disqualifying counsel in civil cases … are not collateral orders subject to appeal.” “We have endorsed this standard,” Rawlinson wrote.